First Amendment Scholarship Update

Here is this week’s collection of newly available scholarship on First Amendment topics:

1) Jeffrey M. Lipshaw (Suffolk University Law School), Can There Be a Religion of Reason? A Response to Leiter's Circular Conception of Religious Belief. The abstract states: 

This is a comment on a definition of religion recently proffered by Brian Leiter in support of different conclusions we ought to draw with respect to religion. His analysis is ultimately circular: the problem with religion is that it is not science. Exposing the circularity requires identifying the trick, which is that he employs an appeal to common sense to distinguish religion and science. Nevertheless, the very belief in common sense is the same as the religion Leiter attacks: it is categorical and insulated from further reasons. My argument in response has three major themes. (1) The argument based on receptiveness to reasons and evidence itself arbitrarily picks and chooses reasons and evidence. (2) It is possible to posit a religion whose categorical demands on action and requirements of foundational bedrock are minimal. (3) Religion uses reason (in the sense of concepts apart from evidence) to grapple with the source of our bedrock beliefs. It differs from other such grappling only in degree and not kind of thought; once we accept the role of concept (or reason) in such work, religious or secular, we necessarily must accord bedrock status (or categoricity) to at least one concept. Finally, I suggest that adoption of Leiter's definition has a troubling implication as to our respect for personhood.

2) Eric G. Andersen (University of Iowa - College of Law ), Religion and Social Welfare in the United States: The Case of Charitable Choice , 7 Review of Faith & International Affairs ----(Fall 2009). The abstract states:

This paper was presented at “Religion and the Rule of Law in Southeast Asia: Continuing the Conversation,” an international conference held in Hanoi, Vietnam on November 3-4, 2007. It briefly describes the faith based initiatives or “Charitable Choice” experiment currently underway in the United States that is testing and shaping the relationship between religious organizations and the state. The experiment’s goal is to invite overtly religious groups to partner with the government in the delivery of social services under conditions that allow the groups to retain, and act in, their religious character, while preventing the imposition of religious belief or practice on the recipients of those services. Charitable Choice is controversial. In many respects, the debate surrounding it is peculiar to the circumstances of the United States. But it may also illuminate analogous issues in very different cultures.

3) Niclas Berggren(The Ratio Institute) and Christian Bjørnskov (University of Aarhus - Department of Economics),  Does Religiosity Promote or Discourage Social Trust? Evidence from Cross-Country and Cross-State Comparisons. The abstract states:

We look at the effect of religiosity on social trust, defined as the share of a population that thinks that people in general can be trusted. This is important since social trust is related to many desired outcomes, such as growth, education, democratic stability and subjective well-being. The effect of religiosity is theoretically unclear: while all major religions call for behaving well to others, religious groups may primarily trust people in their own groups and distrust others, as well as cause division in the broader population. We make use of new data from the Gallup World Poll for 105 countries and the U.S. states, measuring religiosity by the share of the population that answers yes to the question “Is religion an important part of your daily life?”. Our empirical results, making use of regression analysis whereby we control for other possible determinants of social trust and, by using instrumental variables, for the risk of reverse causality, indicate a robust, negative effect of religiosity, both internationally and within the US.

4) Mirjam Künkler (Princeton University) and Julia Leininger, The Multi-faceted Role of Religious Actors in Democratization Processes: Empirical Evidence from Five Young Democracies, to be published in  Democratization: The Journal (December 2009). The abstract states:

The paper comparatively investigates the role of religious actors in the democratization processes of five young democracies from the Catholic, Protestant, Christian-Orthodox and Muslim world, specifically in West Germany after World War II (1945-1969), in Georgia and Ukraine post-1987/9, as well as in Mali post-1987 and Indonesia after 1998. The analysis provides an overview of the roles religious actors played in the erosion of authoritarian rule, the transition to democracy and subsequent democratic consolidation, as well as de-democratization processes. Our three paired comparisons show that the role of religious actors in all three phases of democratic transitions was most influenced by the legal position they enjoyed vis-à-vis the political regime as well as the organizational form these actors took. Their aims, means, and the political significance of their theology were highly dependent on their legal status within the state.

5) Randall P. Bezanson(University of Iowa College of Law), Art and Freedom of Speech, published by
University of Illinois Press (2009). The abstract states:

This book analyzes the broad range of Supreme Court cases that concern the protection of art and free speech under the First Amendment. Finding that debates about free expression (whether in speech or art) swirl around sex and cultural blasphemy, Randall P. Bezanson tracks and interprets the Court's decisions on film, nude dancing, music, painting, and other visual expressions.

Showing how the Court has dealt with judgments of art, quality, meaning, and how to distinguish types of speech and expression, Bezanson explores issues as diverse as homosexuality in the Boy Scouts, gay and lesbian parade floats, 2 Live Crew's alleged copyright infringement, National Endowment for the Arts grants and diversity, dangerous art, and screenings of the film Carnal Knowledge. In considering the transformative meaning of art, the importance of community judgments, and the definition of speech in Court rulings, Bezanson focuses on the fundamental questions underlying the discussion of art as protected free speech: What are the boundaries of art? What are the limits on the government's role as supporter and "patron" of the arts? And what role, if any, may core social values of decency, respect, and equality play in limiting the production or distribution of art?

Accessibly written and evocatively argued, Art and Freedom of Speech explores these questions and concludes with the argument that, for legal purposes, art should be absolutely free under the First Amendment - in fact, even more free than other forms of speech.

6) Christopher S. Yoo (University of Pennsylvania Law School),  Free Speech and the Myth of the Internet as an Unintermediated Experience, 78 George Washington Law Review ---(2010). The abstract states:

In recent years, a growing number of commentators have raised concerns that the decisions made by Internet intermediaries - including last-mile network providers, search engines, social networking sites, and smartphones - are inhibiting free speech and have called for restrictions on their ability to prioritize or exclude content. Such calls ignore the fact that when mass communications are involved, intermediation helps end users to protect themselves from unwanted content and allows them to sift through the avalanche of desired content that grows ever larger every day. Intermediation also helps solve a number of classic economic problems associated with the Internet. In short, intermediation of mass media content is inevitable and often beneficial. Calls to restrict intermediation have also largely overlooked the longstanding tradition reflected in the Supreme Court’s First Amendment jurisprudence with respect to other forms of electronic communication recognizing how intermediaries’ exercises of editorial discretion promote free speech values. The debate also ignores the inauspicious/dubious history of past efforts to regulate the scope of electronic intermediaries’ editorial discretion, which were characterized by the inability to develop coherent standards, a chilling effect on controversial speech, and manipulation of the rules for political purposes.

7) Alex Kreit (Thomas Jefferson School of Law), Making Sense of Facial and As-Applied Challenges, forthcoming in 18 William & Mary Bill of Rights Journal --- (2009). The abstract states:

This article challenges the conventional understanding of "facial" and "as-applied" challenges. Under the Supreme Court's jurisprudence, constitutional challenges can be sorted into two distinct categories: "facial" and "as-applied." A facial challenge is typically described as "a head-on attack on the legislative judgment, an assertion that the challenged statute violates the Constitution in all, or virtually all, of its applications" and, as a result, is invalid in its entirety. An "as-applied" challenge, by contrast, is one where the litigant "concedes that the statute may be constitutional in many of its applications, but contends that it is not so under the particular circumstances of the case." The two categories are believed to form the foundation for a set of substantive rules that control when a court may strike down a statute in its entirety or only overturn the application of the statute in the case at hand. Under these rules, the law strongly favors as-applied challenges on the grounds that they are more consistent with the goals of resolving concrete disputes and deferring as much as possible to the legislative process.

This account of facial and as-applied challenges is by now a familiar part of the constitutional landscape and is generally accepted in the courts. Yet some of the most basic details about the facial and as-applied categories remain surprisingly unclear. For instance, is the choice between facial and as-applied challenges one that a litigant makes when she brings her claim, or is it one that a court makes when it analyzes her claim? Do the rules regarding facial and as-applied challenges limit the adoption of constitutional tests, such as purpose-based tests, that might lead to the facial invalidation of statutes? Or do they relate to the remedial doctrine of severability, which comes into play only after a court has already applied the relevant constitutional test and found a violation? Is the key to distinguishing between facial and as-applied challenges the extent to which the court relies on the specific facts in the case at hand to reach its decision? If so, when is it appropriate for a court to consider something other than those specific facts? Neither the case law nor the academic literature provides a satisfactory answer to these fundamental problems.

This article contends that these questions remain unanswered because categorizing cases into "facial" and "as-applied" challenges, and relying on these categories to inform case outcomes, is an inherently flawed and fundamentally incoherent undertaking. This is because the fate of a statute in the face of a constitutional challenge depends on distinct considerations that cannot be reduced to a single inquiry or set of rules. The article further argues that the Court, in its attempt to build a universally applicable law of facial and as-applied challenges, has only created unnecessary confusion, by obscuring the real issues that animate results in constitutional cases. The article concludes that we would be better served by abandoning the idea that there is, or can ever be, a "law" of facial and as-applied challenges.

8) Justin G. Holbrook (U.S. Air Force), Communications Privacy in the Military  The abstract states:

In the wake of the 1996 case of United States v. Larson, in which the Court of Appeals for the Armed Forces held that a service member held a right to privacy in her workplace e-mail, the Department of Defense issued a DoD-wide policy requiring DoD employees to consent to e-mail monitoring, interception, and seizure for any purpose - including law enforcement. With military members deployed to Iraq and Afghanistan relying exclusively on government information systems to communicate daily with friends and family, the DoD policy arguably violates core Fourth Amendment privacy protections.

Proceeding from a discussion of first principles in military privacy to the four seminal military cases involving communications privacy expectations, I address the constitutional implications of the DoD policy, exploring whether it unconstitutionally warrants searches for law enforcement purposes. I conclude with a normative appeal for military courts and the DoD to follow the Supreme Court’s reasoning in O’Connor v. Ortega and distinguish work-related from law enforcement searches.

With both civilian and military law in flux over the scope of privacy expectations in workplace electronic communications, my aim is to provide timely, considered guidance to courts, policy makers, and practitioners in determining what service members should expect from a normative perspective as they use government information systems to communicate with family and friends.

9) Matt Nicholson, Note -  Is O Centro Really A Sign of Hope for RFRA Claimants?, 95 Va. L. Rev. 1281 (2009).  No abstract is available.

10) Kelly Elizabeth Phipps, Note - Marriage & Redemption: Mormon Polygamy in the Congressional Imagination, 1862-1887,  95 Va. L. Rev. 435 (2009). The abstract states:

How did nineteenth-century federal legislators imagine Mormon polygamy as they debated and adopted harsh anti-polygamy enforcement laws? Republican anti-polygamists in the Reconstruction era called polygamy and slavery the “twin relics of barbarism,” analogizing polygamous husbands to Southern slaveholders. By the 1880s anti-polygamists in Congress rooted their arguments in Chinese Exclusionism and avoided divisive references to Southern slavery. They compared Mormon polygamy to “despotic” cultural practices popularly associated with Chinese immigrants, like concubinage, prostitution, and “coolieism.” White cultural nationalism mobilized support for the first effective anti-polygamy statutes in 1882 and 1887. These changing representations of polygamy illustrate how the Republican party came to terms with the South's legacy of slavery and rebellion by embracing a unified white cultural identity. Metaphorical comparisons to Southern slavery and “oriental paganism” not only vilified polygamy, they also justified federal intervention into local affairs. The these vivid metaphors arose from the Republican party's shifting ideology, not the lived experience of polygamy's perceived “victims”: the plural wives.

11) Jessica L. Chilson, Note -Unmasking John Doe: Setting a Standard for Discovery in Anonymous Internet Defamation Cases,  95 Va. L. Rev. 389 (2009).  The abstract states:

The First Amendment to the United States Constitution provides for and protects an open marketplace for the competition of ideas. Oliver Wendell Holmes, Jr. said, “the best test of truth is the power of the thought to get itself accepted in the competition of the market[.]” The Internet, where anonymity is easily achieved and speech is cheap, seems to be a broader and more pure manifestation of such a marketplace than previously seen. In the 1990s, the Internet was a new mode of communication and an untested medium for speech. The intersection of First Amendment law and defamation law in cyberspace has since posed a variety of legal questions that continue to develop nearly two decades later. How should the fundamental right to freedom of speech play out over a medium where anyone’s voice can be heard instantaneously by thousands, even millions, of people? Who should be liable for defamatory speech occurring over the Internet? When is it appropriate to compel disclosure of a “John Doe” defendant’s identity in a defamation case?

Unmasking John Doe contends that to answer those questions requires a precarious balancing act. Using a hypothetical John Doe lawsuit, the note develops and rigorously tests an obscure standard provided by a Louisiana court, arguing that it may provide the key to ensuring that Internet speakers know the limits of protection guaranteed to them and that meritorious claims of defamation will not be prematurely dismissed.

JFB